Big Guns Come Out In Effort To Show RIAA's Lawsuits Are Unconstitutional

from the this-ought-to-be-worth-watching dept

People have been submitting this story nonstop, but I wanted to take some time to read the details before commenting on it. It's not the first time that folks have argued that the damages sought by the RIAA in various lawsuits against file sharers are unconstitutional. However, the few times it's been brought up in court, the arguments haven't been persuasive. However, this time around, it looks like the big legal guns are getting involved, and the argument seems a lot more comprehensive and compelling.

In the past, it's been noted that the RIAA has curiously avoided suing any Harvard students, with one of the theories being that Harvard had made it quite clear to the RIAA that it would fight back hard. And, with Harvard law school at its disposal, and various professors there indicating that they had serious legal problems with the RIAA's strategy, the RIAA simply decided to ignore any file sharing going on at that prestigious university.

However, for RIAA critic and well known law professor, Charles Nesson, waiting around for the RIAA to sue someone at Harvard was getting boring, so he went out and found a case to participate in. Along with two third year law students, Nesson has hit back hard on the RIAA's efforts in a court filing, where it's noted that the very basis for many of the RIAA's lawsuits is very likely unconstitutional.

He makes the argument that the Digital Theft Deterrence and Copyright Damages Improvement Act of 1999 is very much unconstitutional, in that its hefty fines for copyright infringement (misleadingly called "theft" in the title of the bill) show that the bill is effectively a criminal statute, yet for a civil crime. That's because it really focuses on punitive damages, rather than making private parties whole again. Even worse, it puts the act of enforcing the criminal statute in the hands of a private body (the RIAA) who uses it for profit motive in being able to get hefty fines:

Imagine a statute which, in the name of
deterrence, provides for a $750 fine for each mile-per-hour that
a driver exceeds the speed limit, with the fine escalating to
$150,000 per mile over the limit if the driver knew he or she
was speeding. Imagine that the fines are not publicized, and
most drivers do not know they exist. Imagine that enforcement of
the fines is put in the hands of a private, self-interested
police force, that has no political accountability, that can
pursue any defendant it chooses at its own whim, that can accept
or reject payoffs in exchange for not prosecuting the tickets,
and that pockets for itself all payoffs and fines. Imagine that
a significant percentage of these fines were never contested,
regardless of whether they had merit, because the individuals being fined have limited financial resources and little idea of
whether they can prevail in front of an objective judicial body.

Beyond just questioning the constitutionality of the law, Nesson argues that the court ought to punish the RIAA for its abuses of the law.

This Court should exercise its inherent power to allow
background image redress to Joel Tenenbaum for Plaintiffs' abuse of law and
federal civil court process. As detailed throughout this brief,
Plaintiffs are using any and all available avenues of federal
process to pursue grossly disproportionate -- and
unconstitutional -- punitive damages in the name of making an
example of him to an entire generation of students.
The case at hand warrants the use of inherent federal power
not just because of what Plaintiffs are doing to Joel Tenenbaum
in this Court, but because of the manner in which Plaintiffs are
abusing the federal courts all across the country. Plaintiffs
have pursued over 30,000 individuals in the same way they have
pursued Joel....
For these 30,000
individuals, Plaintiffs have wielded federal process as a
bludgeon, threatening legal action to such an extent that
settlement remains the only viable option. Joel Tenenbaum is
unique in his insistence, in the face of it all, on having his
day in court. The federal courts have an inherent interest in
deciding whether they will continue being used as the bludgeon
in RIAA's campaign of sacrificing individuals in this way.

The filing goes on to describe in rather great detail just how this is an abuse of the law and the courts, noting that it is a "perversion of lawfully initiated process to illegitimate ends," and citing the case law that suggests such behavior should be punished by the courts: "One who uses a
legal process ... against another primarily to accomplish a
purpose for which it is not designed, is subject to liability to
the other for harm caused by the abuse of process."

And this is where it gets good.

To prove the abuse of the process, the filing uses the RIAA's own words against it. First, the writers note (and cite the relevant cases) that even if there is a "proper purpose" behind the filing, it's an abuse of process if the primary purpose in filing the lawsuit is different than the "proper purpose" behind the lawsuit. And, then the authors point to multiple sources where the RIAA noted that the reason it was filing these lawsuits was not to punish these particular individuals for file sharing, but as part of its "deterrence" educational program. From deterrence, Nesson shows how it's actually used as more of a bludgeon to get students to settle, which is clearly not the "proper purpose" of the law:

In essence, Plaintiffs are using the prosecution of Joel
Tenenbaum to extort other accused infringers: the accused are
told to either pay the settlement, or else be exposed to the
protracted litigation and potentially astronomical damages that
Joel now faces. See Milford Power Ltd. Partnership by Milford
Power Associates Inc. v. New England, 918 F.Supp. 471 (D. Mass.
1996) (holding that "the essence of the tort of abuse of process
is the use of process as a threat to coerce or extort some
collateral advantage not properly involved in the proceeding").
The intimidation tactics are working: of the 30,000 accusations
the RIAA has leveled against individuals, only a single
defendant has made her case in front of a judge and jury... (that sole defendant is now awaiting a
new trial).

The RIAA intimidates and steamrolls accused infringers into
settling before they have their day in court and before the
courts can weigh the merits of their defenses. The inherent
dangers in allowing a single interest group, desperate in the
face of technological change, led by a voracious, cohesive,
extraordinarily well-funded and deeply experienced legal team
doing battle with pro se defendants, armed with a statute
written by them and lobbied and quietly passed through a
compliant congress, to march defendants through the federal
courts to make examples out of them should lead this Court to
say "stop."

This case is going to be worth watching closely. It looks like the RIAA failed in its efforts to tiptoe around the legal bees' nest of Harvard Law.

Re: Very Interesting Indeed

I agree, except that Davenport Lyons and Atari are doing that over in the UK.
Even if all of the RIAA's stuff is shot down here, that is still only for music, not games (yet), and only for the US (until it expands to other countries, assuming it would since our groups here weer the ones pushing for those BS laws and agreements).

What I find telling, is that the groups that want to reform tort law to eliminate allegedly frivolous claims like the McDonald's coffee lawsuit or the million dollar pant lawsuit, are completely silent on the extraordinary amount of damages the RIAA is claiming in these lawsuits.

At the very least, in the McDonalds case a person received 3rd degree burns. And in the pants lawsuit, the cleaner did in fact lose his pants. Here, the RIAA is claiming massive damages over a few 99 cent songs.

And worse of all, the RIAA is not even proving that the songs were actually copied, merely that there was a potential to be copied by being shared. It would be like suing someone because their act could possibly have caused me to slip and fall, without any proof of an actual slip and fall.

Of course someone will argue that the problem of music piracy is widespread that the RIAA has to be able to recoup anyway it can. However, in tort law the plaintiff is generally limited to actual damages, with some limited exceptions for outrageous conduct. And it is certainly true in tort law that you can only recover for the damages caused by the defendant. In other words, you cannot make a defendant pay for damages that a non-party caused.

Re:

Ok, I'm gonna pull out the crayons for you just so you'll be edu-ma-cated:

The McDonald's coffee lawsuit was NOT a frivolous lawsuit. The store KNEW they were heating the coffee to an unsafe level and yet did nothing about it. They had been warned previously and, IIRC, had a couple of other incidents involving burns but the one you heard about was the one that made it to court. The woman who got the burns sought to get her medical bills paid and DickMe's offered her MUCH less so she filed suit. That does not indicate a frivolous lawsuit by any means.

Re: Re:

Ima and I had this same discussion a while ago. I'm a bit surprised she brings it up again, though she did note that the woman recieved 3rd degree burns. And I'ma brings up a good point: where's the outrage from those groups in this case? Why is it frivolous when an individual sues a business for "excessive" damages, but not so when a business does the same to an individual? Isn't that a little backwards and biased?

Re: Re:

The store KNEW they were heating the coffee to an unsafe level and yet did nothing about it

"Unsafe" is subjective, whether they knew it or not.

They sold coffee, commonly known as a "hot beverage", in a lidded, insulated container. She removed the lid, wedged the now open container between her legs, and was attempting to adulterate the beverage with cream and sugar while driving. She used the product in an inadvisable, and arguably unsafe, manner.

The woman who got the burns sought to get her medical bills paid

One would hope she has medical insurance for illness and injury, and should count herself fortunate if they were to pick up the bill. I still, all these years later, fail to see how this is McDonald's fault.

Say I buy a hammer and whack myself in the head with it during a tragic juggling accident. Does this make it the manufacturer's fault because there wasn't a sticker warning me against the dangers of juggling? Or is it my fault for being a dumbass?

I personally vote "dumbass", but I haven't suffered the head trauma yet. Maybe that's what I need to see the manufacturer as liable for what are ultimately my actions.

Re: Re: Re:

The coffee was super-heated to an unsafe level, where "unsafe" here means that it would cause 3rd degree burns through clothing. This was done *specifically* to save the company money at the risk of the customer, because the super-heated coffee would retain it's flavor longer and would thus not need to be changed as often. Futher, as noted, they had been warned previous to this suit by health and safety officials, not, as you may assume, by grumpy customers who burned their tongues. A first degree burn is redness, a second degree burn is blistering; a third degree burn is severe tissue damage. If she had sued because her pants were ruined or because she got minor burns from spilling coffee on herself, then you're hammer analogy and "dumbass" conclusion woulkd hold. In light of the facts, however, it would be more like if you bought a sweatshirt which, in the normal course of working out, had a chance of spontaneous compustion. ut at least it saved the clothing manufacturer a few bucks.

This was done *specifically* to save the company money

Overheating coffee takes more in electricity, and does not save any money. It costs more. As for flavor, overheating water used for coffee will make the coffee bitter by pulling out more of the negative "tastes" from the ground beans. Continuing the heating process while it is in the pot only furthers the burning of the coffee. Yuck! McDonald's wasn't negligent. The Consumer was careless, period. The lawsuit should have been tossed out day one.

Re: This was done *specifically* to save the company money

The only thing the lady asked for was to be reimbursed for her medical bills of $20,000.

The lady was not driving, she was a passenger. The vehicle was not in motion when she burned herself.

She burnt herself while trying to remove the lid from the cup.

She suffered 3rd degree burns over 6% of her body, including her inner thighs, perineum, buttocks, and genital and groin areas.

The 180-190 F temperature was to maintain optimum taste. Home coffee is maintained 135-140 F. The McDonald's QA manager testified that the company actively enforced the temperature requirement and also testified that food above 140 F represents a burn hazard. Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds.

She was hospitalize for 8 days and underwent skin grafting and debridement treatment.

During discovery, McDonald's produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992.

With other facts presented, the JURY awarded $200,000 in compensatory damages and $2.7 million in punitive damages, or about 2 days of coffee sales.

Re: Re: Re:

"They sold coffee, commonly known as a "hot beverage", in a lidded, insulated container. She removed the lid, wedged the now open container between her legs, and was attempting to adulterate the beverage with cream and sugar while driving. She used the product in an inadvisable, and arguably unsafe, manner."

McDonalds at the time had the 1st or 2nd hottest coffee in the industry with the other being White Castles. (sorry I do not remember if it was 1st or 2nd)

She and older woman was not driving as you said she was being driven to an appointment by a family member (Grandson or nephew) when they went stopped to get coffee.

Part of the reason that she was awarded damages is she sustained 3rd degree burns to her groin and they presented this as evidence. So the jury had to look at enlarged images of an elderly womans severely burnt genital that she had to have skin graphs performed on.

I do not know about you but seeing those images would be almost enough for me to rule in her favor just so I do not have to see that any more.

SHE removed the lid. SHE put it between her legs. SHE chose to do so in a moving vehicle.

Why then is the entire culpability thrown to McD's? What of her own part taken in creation of this incident?

she sustained 3rd degree burns to her groin and they presented this as evidence.

This is a horrible, horrible thing, and I wouldn't wish it on her, truly. Still not seeing it as McD's fault. (I'm wrong, obviously, since the courts found in her favor, but that doesn't mean I have to agree that this is a just ruling)

Re: Re: Re: Re: Re:

SHE removed the lid. SHE put it between her legs. SHE chose to do so in a moving vehicle.

Why then is the entire culpability thrown to McD's? What of her own part taken in creation of this incident?

Oh, she certainly did something stupid. Few people will disagree with that. The issue is that, if McDonalds had been heating their coffee to an industry-declared "safe temperature", the worst she would have suffered is first-degree burns. If she'd sued after this, we could have easily written her off as a fake victim. She was dumb, she got punished for it, case closed.

The reason McD's is fully liable is because their coffee was too hot. It wasn't an accident. It wasn't a one-time thing. They specifically heated their coffee hotter than the healthy regulations said was safe. (I heard they did it so that people's coffee would still be drinkably hot when they got to work.) Due to their flaunting of the health code despite health inspectors warning them for it, what *should* have been a minor burn due to a stupid action turned into major physical damage that resulted in immense pain and required surgery to correct.

She burned herself so bad, they had to give her skin grafts. In the groin. That wasn't her fault. That was McDonalds' fault. That's why the court ruled in her favor. She was dumb, but McDonalds was willfully negligent in their actions.

Re: Re:

I've heard that McDonald's intentionally makes their coffee excessively hot to discourage customers from getting refills before leaving with their takeout cup. And that legal settlements are just part of doing busines: "Cheaper to settle lawsuits than to fix the problem".

Re:

"What I find telling, is that the groups that want to reform tort law to eliminate allegedly frivolous claims like the McDonald's coffee lawsuit or the million dollar pant lawsuit, are completely silent on the extraordinary amount of damages the RIAA is claiming in these lawsuits."

Those groups are about raising money for the Republican party. There is no real issue here that helps the party, thus no outrage.

Mr. Neeson's most recent foray into the world of copyright was Aldred v. Ashcroft, in which he and others teamed with Mr. Lessig to challenge the Copyright Extension Act (aka, the Sonny Bono Act).

Their collective arguments went down in flames in a 7-2 decision by the Supreme Court (Stevens and Breyer filed dissenting opinions). Importantly, the court's decision could not be more clear that Congress has wide latitude to decide what it deems as "promoting progress", and reinforced the general unwillingness of the Supreme Court to overrule longstanding precedent and second guess decisions made by Congress.

Mr. Neeson and his cracker-jack team of law students have an extremely tough row to hoe, particularly given the clear lines of demarcation drawn many, many years ago by Congress in defining and implementing two separate classes of suits under our copyright laws. There are specific sections dealing with criminal prosecution, and specific sections dealing with civil infringement. What Mr. Neeson is railing against is that civil infringement damages are broken down into two distinct parts, namely actual damages and "in lieu" or "statutory" damages. Caselaw has long recognized that a copyright plaintiff is entitled by law to select either of these damage measures.

For Mr. Neeson to advocate that the statutory damages part of the civil proceedings under copyright law is in essence a quasi criminal proceeding for which a private litigant may not proceed as a "private attorney general" is a broad reach that in my view will fail to find traction before the federal courts at both the district and appellate levels. The same can be said for the magnitude of the statutory damages amounts.

While the case may offer hope to some people who rail against some aspects of current copyright law, it seems clear Mr. Nesson and his team are embarking on a long term project hoping for an outcome that runs against the tide of both clear statutory language and federal court jurisprudence/caselaw. Personally, I believe their time would be far better spent directing their arguments to Congress.

Re:

So, because a guy loses one case in court, all of his subsequent filings must be flawed? I just love that sort of self-gratifying logic. If you can't make that bogus claim at the beginning, the rest of your fallacious argument falls apart.

By the way, we call that a "straw man" argument. You inserted something clearly irrelevant, and then used it to attempt to prove your point. Do you work for the RIAA?

Re: Re:

No, I mentioned Aldred v. Ashcroft only because it reflects the general unwillingness of the judiciary to second guess Congress on matters committed to its discretion by Article 1 of the Constitution. Moreover, the studied treatment and differentiation by Congress of criminal and civil actions for copyright infringement dramatically undercuts attempts to persuade federal courts that certain aspects of civil matters should be treated as quasi-criminal matters.

For those encouraged by this article, the best I can say is wish the team luck because they are going to need it.

Re: Re: Re: Re:

Actually, punitive damages are proper in civil suits, but in suits under our copyright laws punitive damages are not available. The law provides, at the election of the copyright holder, for either "actual" or "statutory" damages, with the trial judge having discretion based upon the facts associated with a case to adjust within statutory limits the amount actually awarded when infringement is found.

Should you harbor any doubt as to the deferrence generally given to Congress by the Supreme Court in matters under copyright law, Aldred v. Ashcroft is quite instructive.

Re: Re: Re: Re:

Or vote for Kusinnich, who... They're all politicians, guys. They're all going to screw us in the end because when the rubber meets the road they all want to be in charge. And it's lonly fun to be in charge if you have lots of power. The Dems want "power" by way of taking all your money and spending it "for" you better than you can. he Reps want "power" in the more conventional sense of telling you what you can and can't do, and then making sure they have the "power" to know when you mis-step and to punnish you for it. We're all better off when they're fighting with each other and accomplishing nothing, because at least then they leave us alone.

Re: Re:

Re:

You appear to be attempting to paint Mr. Neeson as something of a crank or a joke of a lawyer. Rather odd regarding a Summa Cum Laude (1963) post-grad of Harvard Law and among his accomplishments is the famous Ellsberg v. Mitchell in which he successfully defended Daniel Ellsberg against the Government's mis-handled charges for releasing the pentagon papers and the fallout from that entire period in American History. I mean, the guy's not exactly your run-of-the-mill country lawyer.

Re: Re:

Not at all. He is a respected member of the legal profession. My point is merely a note to those jumping with joy that his entrance into the fray should not be construed as "Finally the RIAA will have its ears pinned back."

Re:

Curious about the use of quotation marks here -- or as Jon Stewart recently called them: "dick fingers."

Mr. Neeson's most recent foray into the world of copyright was Aldred v. Ashcroft, in which he and others teamed with Mr. Lessig to challenge the Copyright Extension Act (aka, the Sonny Bono Act).

And thus he's a fool. Can't believe anyone listens to that guy...

Mr. Neeson and his cracker-jack team of law students

Once again, you who claims to never insert opinion into a comment here uses a phrase like "crack-jack" to describe some Harvard law students. That's similar to your use of "nutty". You're oozing of opinion.

Re: Re:

Quotes are just a habit and nothing more.

Re reference to Eldred, I answered a similar comment above. The important point to be made is that Eldred demonstrates, when taken together with the specific structure of copyright law, the almost insurmountable hurdle facing anyone who is going to try and convince a court that "statutory/in lieu" damages are in essence a quasi-criminal proceeding. This is a weak argument at best and unlikely to be favorably received by the federal judiciary in light of longstanding caselaw at the district and appellate court levels.

Re law students, if you have ever worked with law students under the tutelage of a professor you will appreciate that these activities in large measure mimic Moot Court proceedings...many theories, most of which fall well short of the mark.

I attended law school in California in San Diego, grad school for aero in Monterey, and undergrad at Annapolis. Moreover, I am 6'2", enjoy outdoor sports and photography (I post my photos on the internet and tell people do with them as you wish; see, e.g., www.sxc.hu), appreciate romantic dinners with my wife overlooking SF Bay and Monterey Bay (whenever we have the chance to visit), and, dare I say this, watch "Dancing with the Stars". Not to date myself, but I flew P-3Cs out of Moffett Field at a time when the Santa Clara Valley still had many cherry orchards.

On the professional side, I happen to believe that the RIAA is embarked on a litigation campaign using a "business model" that is not particularly wise. What it is doing is generally within the bounds of law, but there are times when PR is just as important, if not more so.

Re:

It would be helpful to me if you could explain "The same can be said for the magnitude of the statutory damages amounts."

I assume you reference the "broad reach that in my [your] will fail to find traction before the federal courts at both the district and appellate levels." because you've not provided the support regarding the magnitude of damages that you provided for the civic/criminal argument. It's not clear to me.

Re:

Sorry, I disagree with your assumptions. The mere fact that a private organization is basically using extortion to supposedly recoup damages is overwhelming enough. I believe that alone should rock through any normal court. Petitioning Congress to stop a vigilante private corporation is wrong. This is a job for the courts, not legislation! Please re-think your submission...

The RIAA should be forced to pay everyone they sued the amount they were originally sued for - not the amount settled for, but the initial amount the RIAA wanted to get out of them, which if I remember right averaged somewhere around $100-$150K per case. Multiply that by the 20,000 or so cases done so far, and you're talking literally billions to repay, enough to bankrupt or severely cripple the RIAA. And also, they should be forced to make a public apology and a public admittal of the truth of their motives. Their lawyers should be disbarred, and the upper execs prosecuted.

Re:

Re:

I would be happy just to see the RIAA stop the lawsuits, which always seemed to me to be legal extortion. If I go into a store and tell the owner that they have to pay me $3000 or I'll file a lawsuit saying that I slipped and fell potentially costing them $150,000.00 I'd be put in jail.

@TDR: It's a good thing that we have a court system, because as much as I think the RIAA is wrong in their pursuit of copyright infringement against non-commercial interests, your brand of justice is worst.

Harvard....

Very interesting the RIAA avoided going after those that could/would defend themselves. If you can prove that pattern I suspect a very interesting legal case could be made. Perhaps even on the order of a class action suit against the RIAA. Now that would be sweet!!!

I think it wouldn't be so bad if perhaps you had to pay something like $10 to $20 a song and while that's still 10 to 20 times the value of the actual song its much much more reasonable than the what 200 bucks a song or whatever they are actually charging per song. I hope the Harvard students finally take the hammer from the RIAA and use it against them to beat the hell out of them

Can't believe no one's said this yet.

I think the fact that the RIAA avoided "them apples" at Harvard tells the whole story. They knew they were abusing the law. Either that or first tried to hire Harvard Alums who looked at their supporting material and laughed them out of their oak-lined offices. Or the RIAA is simply too cheap to hire the best. I'm hoping its the former.

Re: IT"S A SHAM

It's all a sham anyway. Every law is made so the courts can rule on it's interpretation of the law. Our Justice system is screwed up.

I take it you'd prefer the civil law system, where judges have little power and every time there's a question of law raised you have to go to the legislature and have it specifically legislated to a specific end? Personally, I prefer not to have such a bloated process, but if that's the way you feel, move to Canada or France. The common law system is not going away in the U.S.

Re: Re: IT

if that's the way you feel, move to Canada or France.

That's not the way it works, Willton. We don't kick people out of the US just because they disagree with you. In fact, they are perfectly free to point out what they believe to be flaws with the system and call for change. Sorry if you don't like that.

Re: Re: IT

I take it you'd prefer the civil law system, where judges have little power and every time there's a question of law raised you have to go to the legislature and have it specifically legislated to a specific end? Personally, I prefer not to have such a bloated process, but if that's the way you feel, move to Canada or France.

Re: Some DOGMA here?

Interesting name there...some sort of reference to a long-time dead philosopher?!? Maybe...anyway...

I think the issue that this specific line addresses is the issue of abuse. Abuse in the sense of using a filing for an intent that was not specifically granted the plaintiff. Hence, the abuse is inherent in the fact that the granted primary purpose for these lawsuits is not to "make examples of potential lawbreakers", but to provide a means for those who have been victimized by copyright infringement a means to recouperate actual losses.

This is, in no way the crux of their argument. It only provides a rather straightforward way of discrediting the arguments of the RIAA.

@ Anonymous Coward:
I don't find anything wrong with Neeson having lost before. It just shows that he's human. In fact, I'm more inclined to believe that he's probably not backing this venture because he personally believes in it, but because it is either a class choice or he believes in fighting the abuses of the system. Either way, I'm more excited that someone talented is actually taking the time and money to fight back against the RIAA at all...The biggest advantage that I feel Neeson actually has, besides his own experience and expertise, is the youth and energy of the students he's teaching...while they may not have the experience, they may have the advantage of quicker minds, and certainly they have the advantage of legal precedent...the RIAA has been abusing loopholes for too long...inevitably, someone has always called such tactics in the past. It's probably the RIAA's time to get shut down for their abuses.

Score one for the Harvard Professor

Wow that last quote was so glorious. I gave him a standing ovation right here in my office (yea heads turned). He took the words right of my mouth with this statement, "armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them."

I am so glad to see the Berkman center and Neeson finally fighting back. I hope the courts will finally get to the root of the problem.

It is useful to note that in these series of cases in Boston the judge has attempted to help the plaintiffs, virtually all proceeding pro se, to get some pro bono legal counsel. Apparently, Mr. Neeson and some of his law students have taken on this matter as a group project.

Re: Palin's Moose Gun

NO. I do hope however that she will take a look at my legislation that makes it mandatory for blog posters to take an intelligence test before being given the ability to access anything on the internet.

Re: Etc.

The point partially being made here that can sidestep a judicial bias towards the decisions of congress is the fact that the RIAA is self regulated and self policed.

This is where a legal team should be able to hit the group the hardest, not necessarily in the level of fines that congress allowed them to go collect. If they take them out at the knees and make them no longer a police state someone else will have to collect all the money. That new someone would have to do it legally, though a court system, and have trials for each case.

This alone would change so much that the very existence of the RIAA as a legal mob squad that almost all of the problems would be solved. The court cases would shift to gross theft or huge violations of copyright, as opposed to having something on a hard drive. The entire outlook would be changed as well as the court systems tie up, and something would finally be done about this entire situation.

Just IMHO. The fact that he lost before has no bearing on this case, and the fact that the court voted 7-2 also has very little bearing. The issue that will be in play as this hits the real court circuit is not the same as the Eldred v. Ashcroft case, and it is also backed strongly by popular opinion now (as the RIAA has become EXTREMELY infamous). Hopefully this will be the catalyst to the changes we've all been looking for.

Joel's case

I'm disappointed w/ Nesson

He's fighting the good fight, but his references and citations to authority make him look like an idiot. I'm only halfway through his counterclaim brief, and he has already referred to two Circuit Courts of Appeals as "the court" without actually specifying who "the court" is in each case. What's worse, he cites cases from the aforementioned Circuit Courts, but he does not insert the names of the actual Circuit Courts in his citations! See page 8 (citing an 8th Circuit opinion using the following: "In Cass County Music Co v. C.H.L.R., Inc., 88 F.3d 635, 643 (1996), the court stated,"); page 9 (citing a 2nd Circuit opinion using the following: "The court in Parker v. Time Warner Entertainment Co., LP., 331 F.3d 13,22 (2003) cautioned against combining minimum statutory damages with a class action mechanism"). These are mistakes that first-year law students at my school know not to make, and the pedigree of my school is not near that of Harvard.

Judges aren't really supposed to take into account the quality of a legal brief's writing, but it can often affect how they feel about the quality of a litigant's argument. While I can somewhat get behind his legal theory, his writing makes him look like a novice, and it does his client a disservice.

Re: I'm disappointed w/ Nesson

You may be entirely correct, I'm not a law student (or grad). I'm an engineer. But my best friend IS a lawyer, and I helped him study for the California bar. What does that give me, if anything? Perspective. Perspective on how lawyers think. And I certainly entertain the idea that you are 100% correct. However, the perspective I learned is that while it is entirely possible you are correct, its also entirely possible that you are too correct, and that what matters is the "Court", whatever level that may be. Nesson may be some one who intimidates some judges (thin an argument that one is), or Nesson have enough clout and bravado to be a little sloppy from time to time and judges will just go with it. The Ivory Tower of Academia and all that. I don't know. But it still sounds a little fishy to me when small-time lawyers criticize litigators of this stature with what really appears to be minutiae. Would you carry your argument further to say that Nesson is simply incompetent and his entire argument is specious and he will ultimately look like a fool and be laughed out of the profession? I thought not.

Re: I'm disappointed w/ Nesson

Do you really think that the same legal system that pays a criminal for cutting himself while stealing a radio cares about brief syntax? Seriously, the case matters, not what some blogger thinks about diction.

Re: Re: I'm disappointed w/ Nesson

Do you really think that the same legal system that pays a criminal for cutting himself while stealing a radio cares about brief syntax? Seriously, the case matters, not what some blogger thinks about diction.

When a litigator does not indicate the court from which he gets his authority, it does not cast his argument in a favorable light. It makes the litigator look like he is trying to hide something.

In this case, failing to indicate the court from which Nesson cites his authority makes it look like Nesson is trying to cast said authority as binding, when in actuality it is only persuasive. Judges don't like it when a litigator tries to pull a fast one. I won't assume that Nesson was indeed trying to do so, but I can't guarantee that a judge won't think so.

RIAA and other copy control agencies may get what they deserve.

The method that the RIAA and other copyright control agencies are using to shake down college students are not new. Before the RIAA became the Digital Download Police they were the Music on Hold and Background Music Police. They used the same technique to shake down business owners that were using copyrighted material for music on hold or background music. It an RIAA inspector visited or called a business using copyrighted music as background music through a public address system or for music on hold through a PABX System, the RIAA would send a demand letter for thousands of dollars in damages much like accused college students received. Most businesses simply paid the amount demanded and simply wrote it off as a cost of doing business. The smart businesses obtained a license from a local public radio station for about $25.00. Once they had a license, the next time the RIAA tried a shakedown all the business owner had to do was sent the RIAA a copy of the license. Hopefully this litigation will stop future shakedowns of those playing copyrighted music without due process. P.S. do not forget the Happy Birthday to You police. The copyright police will sue any restaurant owner where employees sing Happy Birthday to You to a customer on their birthday that does not have a very expensive license to perform that song.

"The inherent dangers in allowing a single interest group, desperate in the face of technological change, led by a voracious, cohesive, extraordinarily well-funded and deeply experienced legal team doing battle with pro se defendants, armed with a statute written by them and lobbied and quietly passed through a compliant congress, to march defendants through the federal courts to make examples out of them should lead this Court to say 'stop.'"

Karma

I guess "what comes around goes around" really is at play here. The RIAA have had it good for a long time and what value have they really provided? If you make huge profits without really giving anything back then there is a price to pay further down the line and after so long it looks like the bill has come in with interest.

Shoulda..

..gone after the lack of transferability of Fair Use for educational uses instead.

As legislated, "educational purposes" was deemed a legitimate reason for fair use of a copyrighted work. Court decisions have eroded this on the sole basis that the rightsholders wanted a royalty fee paid to them. A student -or instructor-should be able to print whatever they want for class, wherever they want- at home or at a copy shop on campus.

Why Buy What I Can Steal

Excessive fines are unjust. However, it's funny to see everyone embracing each other in an orgy of joy about not being punished for stealing.

At the end of the day you stole something that other people produced and were offering for sale. It took an entire sector of the economy working hard to produce that item. Thousands of hours from sound engineers, musicians, software programmers, etc. to produce the end product, which you so gladly and righteously stole.

Is file sharing the most evil crime? No, but don't act all self righteous about how it's unjust for you to get punished for stealing a product some else produced.

Re: Why Buy What I Can Steal

No, the real question is when did folks like you become impervious to basic logic?

Stealing means having something removed.

Infringement means having something copied.

No one is saying that either one is legal, but we do believe that a legal process needs to work within common sense bounds (something you seem unfamiliar with).

Our position has nothing to do with "entitlement" and everything to do with basic economics (which is basic common sense). If that whole "sector of the economy" you describe can be BETTER OFF by letting content be free and putting in place smarter business models, how is that entitlement?

Re: Re: Why Buy What I Can Steal

First off I had stated being against excess fines so how am I unfamiliar with common sense bounds? And how do you define common sense bounds?

Secondly you accuse me of lacking basic logic which you showed none of in your response. Explain to me how that whole sector of the economy that surrounds the music industry will be "better off" by giving away their product for free and not making any money to support themselves?

Or what is this so called better business model you speak of? Better for you or better for the producers?

RIAA are cowards.

I wrote them a letter. They didn't respond.
I've stopped buying music by any artist represented by them. I am sure they attribute this miniscule drop as being attributable to piracy.
I'm not the only one sick of these guys.

Stupid McDonalds patrons.

[Begin Quote]
The 180-190 F temperature was to maintain optimum taste. Home coffee is maintained 135-140 F. The McDonald's QA manager testified that the company actively enforced the temperature requirement and also testified that food above 140 F represents a burn hazard. Plaintiffs' expert, a scholar in thermodynamics applied to human skin burns, testified that liquids, at 180 degrees, will cause a full thickness burn to human skin in two to seven seconds.
[End Quote]

Blah blah blah. To make coffee, one must first heat water to basically boiling so that it will move through the coffee maker. Unless you're using a coffee press, I've never seen coffee come fresh from a machine at anything less than 175F. Obviously the "scholar" doesn't own a real coffee maker nor understands how one works.

[Begin Quote]
During discovery, McDonald's produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992.
[End Quote]

And how many cups of coffee did they sell during this time? Billions. 700 claims in 10 years? Damn, that's pretty good, for *ANYTHING*. That's 70 claims in a year. A little over 5 claims a month. What was once said? You can't please all of the people all of the time? Five complaints a month don't warrant doing SQUAT! Not even statistically significant if you consider the number of cups of coffee were sold.

Let's do more math. Just for the fun of it. Let's use theoretical round numbers. Let's say they sell 50 cups a day, and each month is 30 days, so they sell 1500 cups a month. If there's 5 complaints...that's like 0.33~%. Yes, 1/3rd of a percent.

I bet they sell a lot more a day than that.

Gee, coffee is *HOT*. Get over it.

The woman was a moron, obviously anyone who did the study doesn't actually *OWN* a real coffee maker.

They should have shot her in the head and put her out of our misery. One less stupid person in this world.